It wasn’t so long ago that we, as a society, were part of a worldwide consensus that defines torture and deems it morally and legally unacceptable. That was obviously before 9/11 and the ensuing cultural panic, which – as most of us are realizing fairly late in the game — was carefully stoked and manipulated by our leaders toward some pretty dark ends. The problem now is not so much that Americans think torture is acceptable, but that we’ve been spun around to the point where most of us no longer have a clear grasp of what the word even means.
The utter horror of the reality of torture is most likely impossible for most of us to comprehend, but its implications within our political system are not. A quick timeline might make it easier to understand torture at this moment in U.S. history, and exactly how we got to this point:
• This is the part we’re all familiar with – In accordance with Dick Cheney’s infamous post- 9/11 “dark side” statement, and in violation of both international and domestic laws, the Bush Administration solicited legal opinions from its own advisors approving the use of interrogation methods universally recognized as torture, relabeling them as “enhanced interrogation” techniques. The best-known of these techniques – waterboarding – dates back to the Spanish Inquisition, and is a war-crime for which the United States executed Japanese soldiers at the end of the Second World War.
• After details (and gruesome photos) of U.S. interrogations first began appearing in the media, questions about their legality were raised publicly, and for the first time liberal Democrats and some Republican lawmakers began to roundly condemn the administration’s torture program. Their opposition reached a crescendo during confirmation hearings for President Bush’s nominee for Attorney General, but was undercut when Republicans leaked to the media that then-House Speaker Nancy Pelosi had been among a group of 4 members of Congress who were secretly briefed in 2002 on the use of these techniques — including waterboarding — and given a virtual tour of a CIA secret “black site” prison. Not only did Ms. Pelosi and the other participants fail to raise any concerns or objections in that meeting, but the CIA briefers were reportedly encouraged to be as harsh as they felt they had to be.
• While campaigning, then-candidate Barack Obama promised to “end torture without exception,” and immediately after taking office he followed through by banning the use of “enhanced interrogation techniques” and pledging to close all CIA “black site” secret prisons, declaring that “transparency and the Rule of Law will be the touchstones of this Presidency.” At the same time, it was made clear that the practice of “rendition” would continue – a system in which U.S.-held prisoners are sent abroad to be tortured by proxy forces at the behest of, and sometimes in the presence of, U.S. intelligence personnel.
• Referring to the United States’ use of “enhanced interrogation” techniques in Iraq and Afghanistan, retired General Barry McCaffrey caused a minor media stir by saying “We tortured people unmercifully. We probably murdered dozens of them during the course of that, both the armed forces and the CIA.” McCaffrey publicly called for an investigation of Bush administration officials who justified and ordered the use of torture, a call that was echoed within liberal sectors of the media and political establishment at that time.
• President Obama responded to calls for accountability for torture-related violations of U.S. and international law by actually discouraging investigations into the actions of former U.S. officials, saying that we need to “look forward, not backwards.”
• Citing the need for secrecy in order to protect national security, the Obama administration also made it impossible to pursue civil cases regarding deaths or torture in U.S. custody.
• In addition to all of the other information that was revealed through the massive disclosure of internal U.S. Government documents by Wikileaks, we were able for the first time to observe how our Government responds to torture behind closed doors. Among those Wikileaks revelations relating to torture:
o In June 2004, the U.S. military issued specifically ordered its forces in Iraq not to investigate allegations of torture and mistreatment at the hands of local forces supported by the U.S. This was presumably in response to widespread reports by U.S. soldiers of detainees being tortured after being handed over to Iraqi forces, including the case of a detainee treated by U.S. medics after being suspended from a ceiling by Iraqi interrogators and tortured with power drills.
o In response to the “Arab Spring” popular democratic uprisings across the Middle East, the Obama administration continued its active support for the repressive regimes in Egypt and Bahrain with full awareness that both were engaged in the systematic use of torture against suspected dissidents. In one diplomatic cable from January, 2009, Ambassador Margaret Scobey reported that embassy informants estimated there were “literally hundreds of torture incidents every day in Cairo police stations alone.”
o Most importantly, the Wikileaks cables revealed the intense and extraordinary diplomatic pressure the Obama administration brought to bear on the governments of Spain, Germany, and the United Kingdom, in order to discourage them from investigating their own citizens’ allegations torture at the hands of U.S. interrogators.
• Commenting on the progress of a Senate Intelligence Committee investigation into torture, Senator Dianne Feinstein stated that she could “assure the Senate and the Nation that coercive and abusive treatment of detainees in U.S. custody was far more systematic and widespread than we thought.” (That report, which was apparently concluded in the Spring or early Summer of 2012, has not yet been released to the public or media. It is unclear when or if this will happen.)
• A report by the American Civil Liberties Union found that;
Torture at the hands of the CIA and the United States military was systematic, not aberrational. And the majority of torture victims were in¬nocent civilians, not bomb-planting terrorists . . . Apart from the token prosecutions of Abu Ghraib’s “bad apples,” virtually every individual with any involvement in the torture program was able to deflect responsibility elsewhere. The military and intelligence officials who carried out the torture were simply following orders; the high government officials who authorized the tor¬ture were relying on the advice of lawyers; the lawyers were “only lawyers,” not policymakers.
• Following the death of Osama Bin Laden, the CIA’s former head of clandestine operations published a book touting the effectiveness of torture under the Bush administration. Political feuding then erupted over who should get credit for killing Bin Laden, with Democrats disputing right-wing claims that Bush-era interrogations produced the intelligence leading to the raid. Torture – this time its efficacy – once again became the focus of a partisan tug of war, while questions of legality and morality were relegated to the sidelines.
• Reporting by journalist Jeremy Scahill revealed that, despite the ban on “black sites” announced in 2009, at least one new secret CIA prison was established under President Obama’s auspices in Somalia — a prison in which the salaries of Somalian guards are paid by the United States, and CIA personnel directly interrogate prisoners.
• Ignoring criticism from human rights and civil liberties groups, the Obama administration narrowed the focus of a Justice Department investigation into the deaths of Iraqi and Afghani detainees while in U.S. custody from 108 cases down to just two.
2012 has so far turned out to be a critically-eventful year with regard to torture:
• In January, the Justice Department launched the prosecution of John Kiriakou, a former CIA operative who provided details to journalists about the torture of prisoners by U.S. agents. Kiriakou brings the number of whistleblowers being charged by the Obama administration under the Espionage Act to six – more than all previous administrations combined.
• Republican Senator Kelly Ayotte sponsored an amendment to President Obama’s National Defense Authorization Act that would have officially reintroduced the “enhanced interrogation techniques” banned in 2009. The amendment failed.
• In March, United Nations Special Rapporteur on Torture, Juan Ernesto Mendez called the U.S. military’s treatment of accused whistleblower Private Bradley Manning “cruel, inhuman, and degrading.” Critics assert that this abusive treatment was part of a systematic effort to coerce Private Manning into implicating Julian Assange and others involved in Wikileaks in order to facilitate their prosecution in the United States under the Espionage Act.
• Despite new U.N. and Afghanistan Independent Human Rights Commission reports detailing systematic torture within Afghan detention facilities, the U.S. military is proceeding with plans to transfer more than 3000 U.S.-held prisoners into Afghan custody.
• In April, a journalist’s Freedom Of Information Act request uncovered a draft of a 2006 memo which, at the time, was seen as so damning to the Bush administration that it ordered every copy to be destroyed. The memo, written by a State Department legal official and Senior Advisor to Condoleezza Rice, acknowledged that many of the “enhanced interrogation” techniques were illegal under U.S. and international law, and was quickly suppressed. The fact of this “smoking gun” coming to light did not alter the Obama administration’s opposition to holding former officials accountable for the torture and mistreatment of detainees.
• At an August 16 press conference, the Ecuadoran Foreign Minister cited the very real possibility of torture by the United States as part of the basis for his country’s decision to grant political asylum to Wikileaks founder Julian Assange. He said,
Given an extradition to the United States of America, it would be unlikely for Mr. Assange to receive a fair trial, and likely…he would be judged by special or military courts, where there is a high probability of suffering cruel and degrading treatment…
• On August 31st, Attorney General Eric Holder announced that no charges will be brought in the Justice Department’s remaining investigation of two detainees who were literally tortured to death in U.S. custody, ending what had been the final possibility that anyone would face charges in relation to the mistreatment of detainees held in U.S. custody during the past eleven years. As the New York Times put it:
Mr. Holder had already ruled out any charges related to the use of waterboarding and other methods that most human rights experts consider to be torture,” and his decision regarding these two cases, “…brings to an end years of dispute over whether line intelligence or military personnel or their superiors would be held accountable for the abuse of prisoners in the aftermath of the terrorist attacks of Sept. 11, 2001.
So, in the end, the Obama administration has opted not to prosecute those who justified, directed, or carried out acts of torture, and instead seems determined to punish those Americans—like Bradley Manning and John Kiriakou—who have been willing to risk their personal freedom to expose torture.
All of this makes several things clear:
1. That President Obama is clearly more determined to protect officials of the previous administration from legal accountability than he is determined to uphold U.S. and international law.
2. Our Government is not only willing to tolerate torture by its client states, but will actually use them for “outsourced” torture, or torture by proxy. In fact, the utilization of torture, whether done directly by the U.S. or by its proxies, has turned out to be a bipartisan feature of our foreign policy that endures from administration to administration.
3. And that, for the foreseeable future, there will be no actual prohibition against torture within our political and legal system; With no possibility of consequences, there will be little incentive for our leaders and their subordinates to adhere to the law in the future. The Bush administration’s attempt to legalize torture may have failed, but the Obama administration appears to have effectively decriminalized it.